Matter of DES Market Share Litigation


“In Hymowitz v Lilly & Co., this Court, recognizing that “extant common-law doctrines, unmodified, provide no relief for the DES plaintiff unable to identify the manufacturer of the drug that injured her,

” adopted a market share theory to create a “realistic avenue of relief for plaintiffs injured by DES.”

Since our decision in that case three years ago, Supreme Court, Erie County, has issued an order severing the market share issue from every DES case pending in New York and consolidating these actions so that the market share issue can be resolved in a single proceeding. The question now before us is whether the DES plaintiffs are entitled to a jury trial on the issue of market share.”…

MATTER OF DES MKT. SHARE LITIG., Leagle, 199237879NY2d299_1352, March 31, 1992.

… “In our effort to address this critical problem of proof unique to DES cases, we examined the common-law doctrines of alternative liability and concerted action and concluded that these doctrines, unaltered, would not afford relief to DES plaintiffs. Next, we looked for guidance to other State courts that had already considered the identification dilemma faced by DES plaintiffs. Based on our survey of the various approaches taken by other State courts and our appreciation for the realities of mass tort litigation in this State, we concluded that a market share theory, based on a national market, was the best solution to the identification problem unique to DES cases. Under that theory, each defendant who marketed DES for pregnancy use was to be held liable according to that manufacturer’s market share.

In choosing to adopt a national market share theory as a matter of New York law, we stated that

“use of a national market is a fair method * * * of apportioning defendants’ liabilities according to their total culpability in marketing DES for use during pregnancy. Under the circumstances, this is an equitable way to provide plaintiffs with the relief they deserve, while also rationally distributing the responsibility for plaintiffs’ injuries among defendants”.

Only those defendants who did not participate in the marketing of DES for pregnancy use would not be held liable for a particular plaintiff’s injury.

“Because liability * * * is based on the over-all risk produced, and not causation in a single case, there should be no exculpation of a defendant who, although a member of the market producing DES for pregnancy use, appears not to have caused a particular plaintiff’s injury”. “…

… read the full paper MATTER OF DES MKT. SHARE LITIG., on Leagle.

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